Citation Nr: 1210797
Decision Date: 03/23/12 Archive Date: 03/30/12
DOCKET NO. 07-00 877 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota
THE ISSUES
1. Entitlement to service connection for a bilateral hearing loss disability.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Jeng, Counsel
INTRODUCTION
The Veteran had active service from March 1967 to January 1969.
This matter arises before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2010, the Board remanded this case for further development, which has been completed, and the case was returned to the Board for adjudication. In response to a request from the Board, a medical opinion from the Veterans Health Administration (VHA) was obtained in November 2011.
As noted in the August 2010 Board remand, the Veteran's application to reopen a claim for entitlement to service connection for a kidney infection has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
FINDINGS OF FACT
1. A bilateral hearing disability is noted on the Veteran's service entrance examination.
2. The evidence clearly and unmistakably shows that that the Veteran's pre-existing bilateral hearing loss disability was not permanently aggravated by service.
3. The preponderance of the evidence is against a finding that tinnitus is related to service.
CONCLUSIONS OF LAW
1. A bilateral hearing loss disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2011).
2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Stegall Considerations
As noted in the Introduction, the Board remanded this matter in August 2010. The Board specifically instructed the RO to provide the Veteran with an examination addressing the etiology of the disabilities currently on appeal, and to readjudicate the claims. Subsequently, the Veteran was afforded an examination in December 2010 and his claims were readjudicated in a June 2011 supplemental statement of the case. The Board later determined that the December 2010 VA examination report was of little probative value since the examiner could not provide the requested opinions without resort to speculation. Accordingly, the Board then requested a Veterans Health Administration opinion on the issues, which was rendered in January 2011 and which the Board has determined is probative to the issues decided herein, as further discussed below. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).
Duties to Notify and Assist
In correspondence dated in August 2006, prior to the October 2006 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2011), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. That letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2011). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. Furthermore, throughout the appeal the Veteran was provided VA examinations, the reports of which have been determined to be of no probative value as discussed below. However, most recently a Veterans Health Administration opinion was rendered in November 2011. The VHA opinion reflects that the examiner reviewed the Veteran's past medical history and rendered an appropriate opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this opinion is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Additionally, the Veteran declined to present testimony in support of his claims. Thus, the duties to notify and assist have been met.
Analysis
The Veteran essentially contends that he has a bilateral hearing loss disability and tinnitus related to service. He asserts that his exposure to loud noise during his military service that caused a current bilateral hearing loss disability and tinnitus as a result of exposure to loud noises from diesel engines, 50 caliber machine guns, and combat equipment, including engine noise of a mechanized landing craft while serving on a river patrol craft during his period of active military service in the Republic of Vietnam.
In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2010).
In case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation; see 38 U.S.C.A. § 1154(b) .
In the present case, the record confirms that the Veteran served as a seaman. In light of this military occupational specialty, the Board finds it likely that he was exposed to load noises from river patrol crafts. However, 38 U.S.C.A. § 1154 does not address the questions of the existence of a present disability or of a causal relationship between such disability and service. Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Thus, the Board must address whether the Veteran's hearing loss disability and/or tinnitus are etiologically related to, or aggravated by, this in-service noise exposure.
A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2011).
A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2011). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).
A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2011). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306- 07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991).
The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).
In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011).
In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2011).
The Veteran's service induction examination, conducted in January 1967, disclosed a puretone threshold of 50 decibels at 4000 Hertz in the right ear and 40 decibels in the left ear at 4000 Hertz; at all other tested frequencies, the Veteran's hearing threshold was zero decibels. The Veteran's medical history prior to service included surgical repair of a gunshot wound to the abdomen. At separation examination in January 1969, no threshold above 10 decibels was found in either ear at any tested frequency.
The VA examiner who evaluated the Veteran's general medical condition in April 1969 noted that there was "a little decrease in hearing," and observed that he had "a little trouble" getting the Veteran to understand him. See April 1969 VA examination, Block 33A. The Veteran has reported that no examination of his hearing was conducted following his 1969 service discharge until after he submitted a July 2006 claim for service connection for hearing loss and tinnitus. The record shows that the Veteran was working in a factory in 1977, when a 50-pound weight hit him in the head, requiring spinal surgery. The record shows that the Veteran worked as a semi-trailer truck driver for many years after he returned to work following his on-the-job injury in 1977. The Veteran suffered a stroke in 2005. An April 2011 medical statement reflects that the Veteran has Alzheimer's dementia, and that a significant decline over the past two years was medically noted.
At his September 2006 VA audiological examination, the Veteran reported exposure to machine gun fire but denied occupational and recreational noise exposure. He also indicated that he had constant bilateral tinnitus which began in 1969. The examiner found a 42 percent speech discrimination level in the right ear and 20 percent speech discrimination in the left ear, but determined that the testing results were not accurate, as they were inconsistent with the Veteran's ability to hear conversational speech. The examiner concluded that he could not provide an opinion as to why the Veteran's hearing thresholds improved in service without resort to speculation.
The Veteran returned for audiological examination in October 2006, but the examiner concluded that the Veteran's audiometric findings were unreliable. She indicated that even if the Veteran had some hearing loss at that time that it would not likely be related to service since the audiometric results at service discharge were normal. Furthermore, the examiner stated that she was unable to provide an opinion as to the etiology tinnitus without resort to speculation due to the inconsistent audiometric results.
The Veteran provided a report of a December 2006 private audiometric examination. The examiner noted a history of noise exposure in Vietnam. No opinion was included in the examination report.
In August 2010, the Board remanded the claims, directing development of audiological evidence and opinion. On VA examination in December 2010, the Veteran reported that he did not use and did not want to use hearing aids. He denied any ringing, humming, or buzzing in his ears; he denied tinnitus. The examiner was unable to determine the Veteran's hearing thresholds for either ear. Speech awareness thresholds were at 35 decibels in each ear. The Veteran demonstrated intermittent understanding of speech. The examiner determined that the examination results were unreliable. The examiner concluded that he could not provide the requested opinions without resort to speculation.
Pursuant to the Board's request, a Veterans' Health Administration opinion was obtained in November 2011. Upon review of the relevant evidence, the examiner opined that bilateral hearing loss and tinnitus were not caused by or a result of military service. He reasoned that hearing was bilaterally within normal limits at service separation without evidence of any negative auditory threshold shift during service; there was no service evidence of any acoustic trauma, evidence of any constant pathologic tinnitus, or a nexus for hearing loss and/or tinnitus to his military service period. In comparing the January 1967 and January 1969 audiometric reports, the examiner found that there was conflicting information. He noted that while the Veteran claimed in 2006 that there was nothing wrong with his hearing prior to service, the audiometric report at service induction demonstrated abnormal hearing bilaterally. The examiner added that the Veteran asserted hearing loss and tinnitus without a specific onset of circumstance but the audiometric results at service separation were "very normal bilaterally." He observed that the automatic audiometric results of 1967 showed both red and black tracking for the 4 kHz thresholds which demonstrated mild impairment in the left ear and moderate impairment in the right ear. If the testing setting was ideal at service entrance then these results would be indicative that the Veteran entered into service with impaired hearing. The examiner noted that there was no evidence that service permanently aggravated bilateral hearing loss but there was actually evidence to the contrary. The examiner stated that there was evidence of occupational and recreational noise exposure prior to service for nine years and following the Veteran's service as a truck driver and hunter for decades.
He further found that tinnitus was also variable, and had mostly been described as periodic or occasional which was not considered a pathologic tinnitus secondary to cochlear damage. The examiner found that there was no evidence that tinnitus had service circumstance of onset and/or was permanently aggravated by service. In October 2006, the Veteran described tinnitus as constant but in December 2010, the Veteran denied tinnitus. He found that there was evidence of non-organic hearing loss on VA examinations in 2006; the objective measures in the December 2006 examination report suggested hearing levels were better than volunteered through behavioral audiometric results. The examiner found that that the most likely scenario was hearing loss had its onset prior to service without permanent aggravation of hearing loss during active military service and progressed to its current undefined level due to the natural aging process, age-associated diseases and disorders, medication side effects, psychiatric disease, and tobacco and alcohol use. In support of his conclusions, the examiner cited to numerous medical journal articles.
In this case, since the Veteran's hearing loss disability was noted on his induction examination report and the November 2011 VA examiner specifically found that the audiometric results at service entry were indicative of impaired hearing, the presumption of soundness does not apply to this disability and the Board finds it pre-existed service entry. See supra 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R.
§ 3.304(b) (2011).
Since the medical evidence of record reflects that hearing loss disability preexisted the Veteran's service, the question of aggravation must be addressed. The evidence clearly and unmistakably shows that the Veteran's hearing loss disability did not undergo a permanent increase in severity beyond the natural progression of the disability during service. Significantly, the Board observes that the separation examination report in January 1969 reflects that no threshold above 10 decibels was found in either ear at any tested frequency. Furthermore, the November 2011 VA examiner noted that there was no evidence that service permanently aggravated bilateral hearing loss but there was actually evidence to the contrary. The examiner stated that there was evidence of occupational and recreational noise exposure prior to service for nine years and following the Veteran's service as a truck driver and hunter for decades.
The Board finds the November 2011 VA examination report to be highly probative, as it is based on a thorough review of the Veteran's medical records and cites to relevant medical principles. The opinion is also consistent with the other evidence of record and is supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Furthermore, the opinion was obtained from a licensed medical professional rather than a lay person. The opinion by the examiner along with the lack of evidence of a worsening of hearing loss during service beyond the natural progression of the disease is sufficient to rebut the presumption of aggravation of any preexisting bilateral hearing loss disability during service. Therefore, service connection for a bilateral hearing loss disability is not warranted.
As to tinnitus, the Board notes that because there was no indication of such at serve entry, the Veteran is presumed to have been sound. It is questionable whether the Veteran currently has tinnitus. While he has reported tinnitus during the appeal period, most recently at his December 2010 examination he denied symptoms of such. However, for purposes of this decision, the Board will concede that the Veteran has tinnitus. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the "current disability" requirement is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). Therefore, Hickson element (1) has been met.
With respect to in-service disease, a review of service treatment records, including the examination report at service discharge, does not reveal complaints consistent with, or a diagnosis of tinnitus. Accordingly, Hickson element (2) is not met with respect to disease.
Turning to an in-service injury, the Board notes that the Veteran has asserted that he sustained acoustic trauma during service. He contends that he was exposed to loud noises from diesel engines, 50 caliber machine guns, and combat equipment, including engine noise of a mechanized landing craft during his period of active military service in the Republic of Vietnam. The Veteran's Form DD 214 shows that he was a seaman. The Board notes that the Veteran is competent to give evidence about what he experienced, and acoustic trauma and tinnitus are subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore, the Board finds that the Veteran was exposed to loud noise during service. Hickson element (2) is therefore satisfied.
With respect to crucial Hickson element (3), medical nexus, the question presented in this case, i.e., the relationship, if any, between the Veteran's tinnitus and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
In this regard, the only competent medical opinion of record is the November 2011 examination report. The previous examiners indicated that they were unable to render opinions with resorting to speculation. As cited above, the November 2011 examiner found that there was no evidence that tinnitus was incurred in or aggravated by service. Additionally, as already discussed, the November 2011 examination report is highly probative, as it is based on a thorough review of the Veteran's medical records, cites to relevant medical principles, is consistent with the other evidence of record, is supported by a detailed rationale, and rendered by a medical professional. See supra Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Therefore, Hickson element (3) is not met and service connection for tinnitus is not warranted.
The Veteran has submitted no competent medical nexus evidence contrary to the November 2011 opinion. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2011) (noting it is a claimant's responsibility to support a claim for VA benefits).
Indeed, there is no medical evidence of record showing that the Veteran's pre-existing hearing loss disability was aggravated by his military service and/or that tinnitus is related to service. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).
However, in this case, assertions as to whether the Veteran's hearing loss disability was aggravated by service or whether he has tinnitus related to service are etiological questions unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current disabilities. See 38 C.F.R. § 3.159 (a)(1) (2011) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he experienced during service, he is not competent to ascertain the etiology of his current disabilities, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more credence to the November 2011 VA examiner's opinion which was rendered by a licensed medical professional rather than a lay person.
The Board also notes that the Veteran has been inconsistent as to his symptoms, specifically as to his tinnitus. While he reported constant bilateral tinnitus beginning in 1969 at his September 2006 VA examination, he denied any symptoms of tinnitus at his December 2010 VA examination.
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board finds that the Veteran's inconsistent statements to different examiners call to question his overall credibility. Simply put, the Board does not find the Veteran's assertions that his tinnitus originated in service and has continued since service to be credible.
Based on the foregoing, the weight of the evidence is against the Veteran's claims and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for bilateral hearing loss disability and tinnitus is not warranted.
ORDER
Entitlement to service connection for a bilateral hearing loss disability is denied.
Entitlement to service connection for tinnitus is denied.
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DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs